The UN Charter provisions address human rights. The preamble provides that Members “reaffirm [their] faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,” as well as the institution’s goal “to promote social progress and better standards of life in larger freedom.” In addition, Article 55(a) mandates that the United Nations promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”35 To achieve this end, at Article 56, state Members “pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of [such] purposes.”
The UN Charter embraces the natural law notion of rights as “rights to which all human beings have been entitled since time immemorial and to which they will continue to be entitled as long as humanity survives”36 These natural rights are inalienable, permanent, and universal. They are part of the UN Charter’s equality goal.37 The universality of rights is contested as founded in Western philosophy and lacking Eastern and/or Southern linkages. Instead of universal, some posit that rights are culturally contingent.
There exists an ongoing debate as to whether the human rights provisions of the UN Charter create binding legal obligations on a Member state to respect the human rights of persons located within its borders, be they nationals or nonnationals. States have reached different conclusions with respect to the nature of the Charter’s human rights obligations. Some view the obligations as binding,38 others have concluded, particularly in older writings, that they are not binding.39 Notwithstanding such inconsistent interpretations, the International Court of Justice (ICJ) has referred to the Charter’s provisions as “obligation,” and to breaches thereof as “violations of the purposes and principles of the Charter.”40 The ICJ also has stated that “distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights … [are] a flagrant violation of the purposes and principles of the Charter.”41 Further, many propose that the rights in the Charter, together with other documents, have become part of the customary international law of human rights.42
The key documents that create human rights obligations today include the so-called International Bill of Human Rights comprised by the Universal Declaration; the Internationan Covenant on Economic, Social, and Cultural Rights (ICESCR); and the International Covenant on Civil and Political Rights (ICCPR) and its two Optional Protocols. Other significant human rights treaties include the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the Convention on the Elimination of All Forms of Racial Discrimination (CERD); the Convention on the Rights of the Child (CRC); the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention Against Torture); and the Convention on the Prevention and Punishment of the Crime of Genocide. There are also three regional human rights treaties: the African (Banjul) Charter on Human and Peoples’ Rights, the American Convention on Human Rights (ACHR), and the (European) Convention for the Protection of Human Rights and Fundamental Freedoms. Furthermore, numerous other instruments resulting from UN conferences also address human rights concerns relevant to this volume.43 Such declarations and resolutions, while not legally binding, carry moral persuasion and reflect the trend toward customary international law status.
It is instructive to review the historical background of the first three of these documents. In 1947, with former First Lady of the United States Eleanor Roosevelt (the U.S. representative) as chair, the UN Commission on Human Rights (UNCHR) commenced the drafting process for an International Bill of Human Rights as mandated by the UN Economic and Social Council. In December of that year, at UNCHR’s Second Session, it was decided that the International Bill of Human Rights should consist of a “declaration,” a “covenant,” and “measures of implementation.”44
The Universal Declaration was unanimously adopted on November 10, 1948.45 When the UN General Assembly adopted the Declaration, it requested that priority be given to preparation of one covenant and measures of implementation that would embody the principles contained in the Declaration.46 Significantly, the Universal Declaration is a comprehensive document dealing not only with civil and political rights but also with economic, social, and cultural rights. (For a discussion of the different types of rights, see section 3.5.)
While debate about the legal status of the Universal Declaration is ongoing, many scholars consider it to be legally binding as a general principle of international law; others consider it to have the status of jus cogens,47 even though at the time of its adoption the U.S. representative to the UN General Assembly stated: “It is not a treaty; it is not an international agreement. It is not and does not purport to be a statement of law or of legal obligation.”48 Subsequent developments in both domestic and international law, however, generally confirm that at least some provisions of the Universal Declaration have status as customary law.49 In fact, the Restatement (Third) of Foreign Relations Law provides that “almost all states would agree that some infringements of human rights enumerated in the Universal Declaration are violations of the Charter or of customary international law”50
The finalization of the covenant that was to follow the Universal Declaration presented significantly more difficulties than the drafting and adoption of the Declaration. From 1949 to 1954 the UNCHR devoted six sessions to preparation of the covenant.51 The problems resulted from interrogations by so-called developed states as to whether social, economic, and cultural rights—already articulated in the Declaration—were relevant to, or appropriate as, human rights. Such states maintained that social, economic, and cultural rights were aspirational goals—the attainment of which was dependent on economic resources and economic theory and ideology. Consequently, Western states held that economic rights were inappropriate for framing as binding legal obligations. On the other hand, then-Second and -Third World states held that economic rights were the most important. The different viewpoints resulted in the drafting of two international documents—the ICCPR and the ICESCR—to be submitted simultaneously for consideration by the General Assembly. One document was to contain civil and political rights and the other social and economic and cultural rights. The General Assembly instructed that, in order to maintain uniformity, both covenants should overlap to the greatest extent possible.52
Finally, on December 16, 1966, the General Assembly adopted and opened for signature, ratification, and accession the ICESCR, the ICCPR, and the Optional Protocol to the ICCPR.53 In the two covenants that emerged, the only overlapping provisions were those on nondiscrimination (including discrimination based on sex), self-determination, and sovereignty over natural resources. These two covenants, like the UN Charter, reflect the natural law origins of human rights law. For example, the ICCPR’s prohibition against the suspension of certain rights by the state, even in the event of public emergencies that threaten the life of the nation, reflect the notion of the inalienability of certain rights.54
(B) The Regional Systems
The three regional human rights systems cover the European, Inter-American, and African regions; there is currently no Asian or Middle Eastern regional human rights system. Of these, the one of concern in this volume is the Inter-American system, which is composed of various documents and has two overlapping frameworks. First, the OAS Charter,55 in Article 106, established the Inter-American Commission on Human Rights (IACHR), which was given limited power to promote the human rights embodied in the 1948 American Declaration on the Rights and Duties of Man (American Declaration). In 1970 the OAS Charter was amended by the 1967 Protocol of Buenos Aires, which strengthened the IACHR and institutionalized the implementation of the American Declaration.
Second, in 1969, states of the Inter-American region adopted the ACHR, which contains a long list of substantive rights. This framework includes the IACHR, which also is part of the OAS system. In 1979 the IACHR was charged with “develop[ing] an awareness of human rights among the peoples of America.”56 The IACHR may receive complaints of violations and issue reports on the status of human rights in the